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STATE v. MITCHELL

No. 666.

155 S.E.2d 96 (1967)

270 N.C. 753

STATE v. Michael Lamar MITCHELL.

Supreme Court of North Carolina.

June 20, 1967.

Attorney(s) appearing for the Case

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

J. Duane Gilliam, Fayetteville, for defendant.

SHARP, Justice.

Defendant's first assignment of error is that the court erred in overruling defendant's plea of former jeopardy. This assignment is without merit. We have repeatedly held:

"When, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner's request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried...

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